OCEANAGOLD (PHILIPPINES), INC. v. COMMISSIONER OF INTERNAL REVENUE (Consolidated with 9034)

REPUBLIC OF THE PHILIPPINES Court ofTax Appeals QUEZON CITY Third Division OCEANAGOLD (PHILIPPINES), CTA Case No. 8995 INC., Petitioner, -versus- COMMISSIONER OF INTERNAL REVENUE, Respondent. X-------------------------------------------------X OCEANAGOLD (PHILIPPINES), CTA Case No. 9034 INC., Petitioner, Members: BAUTISTA, Chairperson -versus- FABON-VICTORINO, and RINGPIS-LIBAN, JL COMMISSIONER OF INTERNAL Promulgated: REVENUE, ? / ?018 Respondent. X--------------------------------------------------------~ ------------/o--:-t-o--c-;-,-.----� ------- X DECISION BAUTISTA, J.: The Case These consolidated Petitions for Review1 filed under Section 7(a)(2)2 of Republic Act ("RA") No. 11253, as amended, and Section 3(a)4, 1 Records, CTA Case No. 8995, Vol . 1, Petitio11 f or Review ("PFR "), pp. 6-250, with annexes; Records, CTA Case No. 9034, PFR, pp. 10-229, with annexes. 2 SEC. 7. Jurisdiction. -The CTA shall exercise: a. Exclusive appellate jurisdiction to review by appeal, as herein provided: XXX XXX XXX 2. Inaction by the Commissioner of Internal Revenue in cases involving disputed assessments, refunds of internal revenue taxes, fees or other charges, penalties in relations there to, or other matters arising under the National Internal Revenue Code or other laws administered by the Bureau of Internal Revenue, r

DECISION CIA CASE NOS. 8995 & 9034 Page 2of33 Rule 8, in relation to Section 4(a)5, Rule 8 of the Revised Rules of the Court of Tax Appeals6 ("RRCTA") seek for the Court to: 1. CTA Case No. 8995 - (a) render a judgment declaring OceanaGold (Philippines), Inc. ("OGPI") entitled to a refund of, or to the issuance of a tax credit certificate ("TCC"), in the amount of Php25,843,462.11, representing alleged erroneously paid and illegally and wrongfully collected excise taxes for the period from February to March 2013; and (b) order the Commissioner of Internal Revenue7 (" CIR") to refund or to issue a TCC in favor of OGPI the said amount;8 and 2. CTA Case No. 9034 - (a) render a judgment declaring OGPI entitled to a refund of, or to the issuance of a TCC, in the amount of Php42,785,549.13, representing alleged erroneously paid and illegally and wrongfully collected excise taxes on OGPI's removals of copper concentrates and dore bars for the period from April to June 2013; and (b) order the CIR to refund or to issue a TCC in favor of OGPI the said amount.9 where the National Internal Revenue Code provides a specific period of action, in which case the inaction shall be deemed a denial; 3 An Act Creating the Court of Tax Appeals, as amended. 4 SEC. 3. Who may appeal; period to file petition. - (a) A party adversely affected by a decision, ruling or the inaction of the Commissioner of Internal Revenue on disputed assessments or claims for refund of internal revenue taxes, or by a decision or ruling of the Commissioner of Customs, the Secretary of Finance, the Secretary of Trade and Industry, the Secretary of Agriculture, or a Regional Trial Court in the exercise of its original jurisdiction may appeal to the Court by petition for review filed within thirty days after receipt of a copy of such decision or ruling, or expiration of the period fixed by law for the Commissioner of Internal Revenue to act on the disputed assessments. In case of inaction of the Commissioner of Internal Revenue on claims for refund of internal revenue taxes erroneously or illegally collected, the taxpayer must file a petition for review within the two-year period prescribed by law from payment or collection of the taxes. 5 SEC. 4. Where to appeal; mode of appeal. - (a) An appeal from a decision or ruling or the inaction of the Commissioner of Internal Revenue on disputed assessments or claim for refund of internal revenue taxes erroneously or illegally collected, the decision or ruling of the Commissioner of Customs, the Secretary of Finance, the Secretary of Trade & Industry, the Secretary of Agriculture, and the Regional Trial Court in the exercise of their original jurisdiction, shall be taken to the Court by filing before it a petition for review as provided in Rule 42 of the Rules of Court. The Court in Division shall act on the appeal. 6 A.M. No. 05-11-07-CTA, November 22,2005. 7 Formerly her Honorable Commissioner of Internal Revenue ("CIR") Kim S. Jacinto-Henares, now his Honorable CIR Ceasar R. Dulay. 8 Records, CTA Case No. 8995, Vol. 1, PFR, Prayer, p. 36. 9 Records, CTA Case No. 9034, PFR, Prayer, p. 36.

DECISION CTA CASE NOS. 8995 & 9034 Page 3 o�33 The Parties1o OGPI, formerly Australasian Philippines Mining, Inc.11 (" APMI"), is a corporation organized and existing under the laws of the Philippines, with principal place of business at the 2nd Floor, CJV Building, 108 Aguirre St., Legaspi Village, Makati City. The CIR is the duly appointed commissioner of the Bureau of Internal Revenue ("BIR") who is tasked to assess and collect all national internal revenue taxes, fees, and charges, and to enforce all forfeitures, penalties, and fines connected therewith. He holds office at the BIR National Office Building, Agham Road, Diliman, Quezon City. The Facts On June 20, 1994, the Republic of the Philippines and Arimco Mining Corporation (" AMC") entered into a Financial or Technical Assistance Agreement12 ("FTAA"), which involves the mineral exploration and subsequent large-scale development and commercial utilization of mineral deposits over a contract area spanning the Provinces of Nueva Vizcaya and Quirino.13 A portion of the contract area under the FTAA structure covers the Didipio Gold-Copper Project ("Didipio Project").14 On October 19, 1995, the Securities and Exchange Commission ("SEC") approved the change of AMC's corporate name to Climax- Arimco Mining Corporation ("CAMC").JS Thereafter, effective December 23, 1996, CAMC transferred to APMI all its rights and obligations in and under the FTAA, which was restated in the Assignment, Accession and Assumption 10 Records, CTA Case No. 8995, Vol. 2, Joint Stipulation of Facts and Issues ("JSFI"), Stipulation of Facts, pars. 1-2, p. 758. 11 Records, CTA Case No. 8995, Vol. 3, Exhibit "P-1," Amended Articles of Incorporation ("AOI"), p. 904; Records, CTA Case No. 8995, Vol. 3, Exhibit "P-6," Certificate of Filing of Amended AOI, p. 984. 12 Records, CTA Case No. 8995, Vol. 3, Exhibit "P-2," Financial or Technical Assistance Agreement ("FTAA"), pp. 913-966. 13 Records, CTA Case No. 8995, Vol. 3, Exhibit "P-2," FTAA, pp. 915, 924; Records, CTA Case No. 8995, Vol. 3, Exhibit "P-51," Judicial Affidavit ("JA") of Atty. Joan D. Adaci-Cattiling ("Athj. Adaci- Cattiling"), A-13, p. 1174. 14 Records, CTA Case No. 8995, Vol. 3, Exhibit "P-51," fA of Atty. Adaci-Cattiling, A-13, p. 1174. 15 Records, CTA Case No. 8995, Vol. 3, Exhibit "P-3," Certificate of Filing of Amended AOI, pp. 967-976; Records, CTA Case No. 8995, Vol. 3, Exhibit "P-51," JA of Atty. Adaci-Cattiling, A-10, p. 1173. I

DECISION CTA CASE NOS. 8995 & 9034 Page4 o�33 Agreement (Amended and Restated)16 executed on September 15, 2004.17 The transfer was approved by the Department of Environment and Natural Resources ("DENR") on December 9, 2004.18 On March 15, 2005, after finding a portion of the Exploration Contract Area as being suitable for the Didipio Project, APMI filed a Partial Declaration of Mining Feasibility19 ("PDMF") with the DENR.2o The PDMF was approved by the DENR in an Order21 dated October 11, 2005, thereby constituting a portion of the Exploration Contract Area as the mining area.22 Subsequently, on February 13, 2007, APMI submitted a request for ruling with the CIR confirming its exemption from the payment of excise tax on minerals during the recovery period.23 On May 4, 2007, the CIR issued BIR Ruling No. 10-200724 confirming APMI's exemption from the payment of excise tax upon the date of approval of the Mining Project Feasibility Study up to the end of the recovery period, which recovery period shall be reckoned from the date of commercial operation and shall be for a maximum period of five (5) years or until the date of actual recovery of APMI's pre-operating, exploration, and development expenses, whichever comes earlier.2s Eventually, the SEC approved the change of APMI's corporate name to OGPI on June 1, 2007.26 Sometime in 2008, OGPI halted further mine development in the Didipio Project due to escalating costs and uncertainty in the 16 Records, CTA Case No. 8995, Vol. 3, Exhibit "P-4-1," Assignment, Accession and Assumption Agreement (Amended and Restated), pp. 977-980. 17 Id., Exhibit "P-51," JA ofAth;. Adaci-Cattiling, A-11, p. 1173. 18 Records, CTA Case No. 8995, Vol. 3, Exhibit "P-5," Order In Re: Transfer of FTAA, pp. 981-983; Records, CTA Case No. 8995, Vol. 3, Exhibit "P-51," JA ofAtty. Adaci-Cattiling, A-11, p. 1173. 19 Records, CTA Case No. 8995, Vol. 3, Exhibit "P-7," Partial Declaration of Mining Feasibility ("PDMF"), pp. 996-997. 2o Records, CTA Case No. 8995, Vol. 3, Exhibit "P-51," JA of Atty. Adaci-Cattiling, A-20, pp. 1175-1176. 21 Id., Exhibit "P-8," Order, pp. 998-1000. 22 Id., Exhibit "P-51," JA of Athj. Adaci-Cattiling, A-21, p. 1176. 23 Id., A-47, p. 1181. 24 Id., Exhibit "P-25," BIR Ruling No. 10-2007, pp. 1040-1045. 2s Records, CTA Case No. 8995, Vol. 3, Exhibit "P-25," BIR Ruling No. 10-2007, pp. 1040-1045; Records, CTA Case No. 8995, Vol. 3, Exhibit "P-51," JA of Ath;. Adaci-Cattiling, A-48, p. 1181. 26 Records, CTA Case No. 8995, Vol. 3, Exhibit "P-6," Certificate of Filing of Amended AOI, pp. 984-995; Records, CTA Case No. 8995, Vol. 3, Exhibit "P-51," JA of Atty. Adaci-Cattiling, A-12, p. 1174. (

DECISION CTA CASE NOS. 8995 & 9034 PageS o�33 financial markets.27 OGPI thus placed the Didipio Project under" care and maintenance," which lasted from December 2008 until December 2010. 28 In December 2010, after completing a strategic review and securing further financing, OGPI resumed development work in the Didipio Project.29 Eventually, in late 2012, OGPI successfully commenced the commissioning of the Didipio Project, and mined and stockpiled approximately 800,000 metric tons ("MT") of ore for further processing.3o As part of the commissioning process, OGPI commenced ore milling operations to produce copper concentrates.31 Mission Order No. 0003018232 dated September 3, 2012 was issued by Revenue Region No. 3 ("RR No. 3") authorizing certain revenue officers ("ROs") to search OGPI's premises for articles subject to excise tax and to detain package/s containing taxable articles pursuant Sections 171 and 172 of the 1997 National Internal Revenue Code33, as amended ("1997 NIRC").34 On December 7, 2012, pursuant to Mission Order No. 00030182, and to prevent OGPI from making removals of copper concentrates without prepayment of excise tax, ROs of Revenue District Office ("RDO") No. 14 seized and detained approximately 800,000 MT of mineral ores stockpiled in the mine site.35 The seizure was covered by Apprehension Slip No. 0001342436. On December 10, 2012, OGPI wrote a letter37 addressed to Ms. Thelma S. Milabao, Officer-in-Charge Regional Director ("OIC-RD") of Revenue Region No. 3, and Atty. Ma. Isabel D. Utit, OIC-Asst. Revenue District Officer of RDO No. 14, protesting the seizure and detention of 800,000 MT of mineral ores.38 27 Records, CTA Case No. 8995, Vol. 3, Exhibit "P-51," ]A of Atty. Adaci-Cattiling, A-24, p. 1176. 28 Id., A-24 & A-25, p. 1176. 29 Id., A-26 & A-27, p. 1176. 3o Id., A-28, p. 1177. 31 Id. 32 Id., Exhibit "P-10," Mission Order No. 00030182, p. 1004. 33 Republic Act No. 8424, January 1, 1998. 34 Records, CTA Case No. 8995, Vol. 3, Exhibit "P-51," ]A of Atty. Adaci-Cattiling, A-32, p. 1178. 35 Records, CTA Case No. 8995, Vol. 2, ]SFI, par. 3, p. 759; Records, CTA Case No. 8995, Vol. 3, Exhibit "P-51," ]A ofAtty. Adaci-Cattiling, A-34 & A-35, p. 1178. 36 Records, CTA Case No. 8995, Vol. 3, Exhibit "P-11," Apprehension Slip No. 00013424, p. 1005. 37 Id., Exhibit "P-12," Letter dated December 10, 2012, pp. 1006-1027. 38 Id., Exhibit "P-51," ]A of Atty. Adaci-Cattiling, A-37 & A-38, p. 1179. (

DECISION CTA CASE NOS. 8995 & 9034 Page 6 of33 On January 14, 2013, in connection with OGPI's planned first sale and delivery of copper concentrates in April 2013, OGPI obtained an Ore Transport Permit39 (" OTP") from the Mines and Geosciences Bureau ("MGB") authorizing the transportation of 5,500 MT of copper concentrates from Brgy. Didipio, Municipality of Kasibu, Province of Nueva Vizcaya ("mine site") up to the shipping point in Poro Point, La Union.4o Another OTP41 was issued by the MGB on February 13, 2013, which extended the OTP issued on January 14, 2013 until March 13, 2013.42 On February 11, 2013 and February 12, 2013, while OGPI was transporting copper concentrates for delivery to its buyer, a total of 100 MT with an estimated value of USD320,000.00 of copper concentrates were seized and detained.43 The seizures were covered by Apprehension Slip Nos. 0001342644 and 0001342745, respectively. On February 15, 2013, the CIR issued Revenue Memorandum Circular ("RMC") No. 17-201346 which, among others, revoked BIR Ruling No. 10-2007 and with it, OGPI's exemption from excise tax during the recovery period.47 On February 20, 2013, while OGPI was again transporting copper concentrates for delivery to a buyer, the CIR seized, apprehended, and detained 160 MT of copper concentrates with an estimated value of USD512,000.00.48 The seizure was covered by Apprehension Slip Nos. 0001305149, 0001305450, 0001306051, 0001305252, 0001305353, 0001305554, 0001305955, and 0000624556.57 39 Records, CTA Case No. 8995, Vol. 3, Exhibit "P-9-1," Ore Transport Pemzit ("OTP") dated Januan; 14, 2013, p. 1003. 40 Id., Exhibit "P-51," JA of Ath;. Adaci-Cattiling, A-29, p. 1177. 41 Id., Exhibit "P-9," OTP dated February 13, 2013, pp. 1001-1002. 42 Id., Exhibit "P-51," JA of Ath;. Adaci-Cattiling, A-29, p. 1177. 43 Records, CTA Case No. 8995, Vol. 3, Exhibit "P-51," JA of Atty. Adaci-Cattiling, A-40, p. 1179. 44 Id., Exhibit "P-13," Apprehension Slip No. 00013426, p. 1028. 45 Id., Exhibit "P-14," Apprehension Slip No. 00013427, p. 1029. 46 Id., Exhibit "P-29," Revenue Memorandum Circular ("RMC") No. 17-2013, pp. 1049-1051. 47 Records, CTA Case No. 8995, Vol. 2, JSFI, par. 4, p. 759; Records, CTA Case No. 8995, Vol. 3, Exhibit "P-51," JA ofAtty. Adaci-Cattiling, A-34 & A-35, p. 1178. 48 Records, CTA Case No. 8995, Vol. 2, JSFI, par. 5, p. 759; Records, CTA Case No. 8995, Vol. 3, Exhibit "P-51," JA of Atty. Adaci-Cattiling, A-66, p. 1185. 49 Records, CTA Case No. 8995, Vol. 3, Exhibit "P-15," Apprehension Slip No. 00013051, p. 1030. 50 Id., Exhibit "P-16," Apprehension Slip No. 00013054, p. 1031. 51 Id., Exhibit "P-17," Apprehension Slip No. 00013060, p. 1032. 52 Id., Exhibit "P-18," Apprehension Slip No. 00013052, p. 1033. 53 Id., Exhibit "P-19," Apprehension Slip No. 00013053, p. 1034. 54 Id., Exhibit "P-20," Apprehension Slip No. 00013055, p. 1035. 55 Records, CTA Case No. 8995, Vol. 3, Exhibit "P-21," Apprehension Slip No. 00013059, p. 1036. 56 Id., Exhibit "P-22," Apprehension Slip No. 00006245, p. 1037. p/

DECISION CTA CASE NOS. 8995 & 9034 Page 7 of33 On February 25 and 26, 2013, OGPI paid under protest58 excise taxes amounting to Php13,942,179.3959 and Php417,743.206o, respectively, allegedly due on the seized copper concentrates and the remaining concentrates awaiting removal from the mine site, or a total of 5,500 MT.61 On March 1, 2013, the CIR again seized and detained 40 MT of OGPI's copper concentrates while in transit, this was covered by Apprehension Slips No. 0001345162 and 0001345263.64 On March 26, 2013, OGPI prepaid the amount of Php11,483,539.8265 representing its excise tax for its next scheduled removals of copper concentrates for transport and sale to its buyers.66 Thereafter, on April 29, 2013, OGPI again prepaid excise tax in the amount of Php20,420,131.1567 allegedly due on 11,000 wet metric tons ("WMT") of copper concentrates awaiting removal from the mine site pursuant to the OTP issued by MGB.68 Another payment was made on May 30, 2013 in the amount of Php20,783,962.4369 allegedly to cover OGPI's next scheduled removals of 11,000 WMT of copper concentrates for transport and sale to its buyer_?o 57 Records, CTA Case No. 8995, Vol. 3, Exhibit "P-51," JA of Atty. Adaci-Cattiling, A-66, p. 1185. 58 Records, CTA Case No. 8995, Vol. 3, Exhibit "P-33," Protest re: Php13,942,179.39 excise tax, pp. 1115-1120; Records, CTA Case No. 8995, Vol. 3, Exhibit "P-37," Protest re: Php417,743.20 excise tax, pp. 1126-1139. 59 Records, CTA Case No. 8995, Vol. 3, Exhibit "P-34," eFPS Payment Details, p. 1122; Records, CTA Case No. 8995, Vol. 3, Exhibit "P-35," Payment Form, p. 1123; Records, CTA Case No. 8995, Vol. 3, Exhibit "P-36," Excise Tax Return, pp. 1124-1125. 6o Records, CTA Case No. 8995, Vol. 3, Exhibit "P-38," Payment Form and BIR Tax Payment Deposit Slip, pp. 1137-1139. 61 Id., Vol. 4, Exhibit "P-53," JA of Ms. Josefina Mallari ("Ms. Mallari''), A-10, p. 1415. 62 Id., Vol. 3, Exhibit "P-23," Apprehension Slip No. 00013451, p. 1038. 63 Id., Exhibit "P-24," Apprehension Slip No. 00013452, p. 1039. 64 Id., Exhibit "P-51," JA of Athj. Adaci-Cattiling, A-67, p. 1186. 65 Records, CTA Case No. 8995, Vol. 3, Exhibit "P-40," eFPS Payment Details, p. 1160; Records, CTA Case No. 8995, Vol. 3, Exhibit "P-41," Excise Tax Return, p. 1161. 66 Records, CTA Case No. 8995, Vol. 4, Exhibit "P-53," JA of Ms. Mallari, A-10, p. 1415. 67 Records, CTA Case No. 8995, Vol. 3, Exhibit "P-42," eFPS Payment Details, p. 1162; Records, CTA Case No. 8995, Vol. 3, Exhibit "P-43," Excise Tax Return, p. 1163. 68 Records, CTA Case No. 8995, Vol. 4, Exhibit "P-53," JA of Ms. Mallari, A-10, p. 1415. 69 Records, CTA Case No. 8995, Vol. 3, Exhibit "P-44," eFPS Payment Details, p. 1164; Records, CTA Case No. 8995, Vol. 3, Exhibit "P-45," Excise Tax Return, p. 1165. 70 Records, CTA Case No. 8995, Vol. 4, Exhibit "P-53," JA of Ms. Mallari, A-10, pp. 1415-1416. (

DECISION CTA CASE NOS. 8995 & 9034 Page 8 o�33 Lastly, on June 25, 2013, OGPI prepaid the amount of Php1,581,455.5571 representing alleged excise tax to cover its next scheduled removals of 1,685.57 ounces of dare bars for transport and sale to its buyer.n On February 20, 2015, OGPI filed a letter73 addressed to Ms. Sarah B. Mopia, Chief of Excise LT Audit Division I, seeking for the recovery of the: (1) excise taxes paid for the period from February to March 2013 on OGPI's removals of copper concentrates in the aggregate amount of Php25,843,462.41; and (2) excise taxes paid for the period from April to June 2013 on OGPI's removals of copper concentrates and dare bars in the aggregate amount of Php42,785,549.13.74 Without the decision of the CIR on its claim for refund or the issuance of a TCC,75 on February 24, 2015 and April 28, 2015, OGPI filed two separate Petitions for Review before the Court of Tax Appeals ("CTA") docketed as CTA Case Nos. 899576 and 903577, respectively, the first was raffled to the Third Division, and the second to the Second Division. In CTA Case No. 8995, after being granted extension,78 the CIR filed his Answer79 on Apri113, 2015, interposing the following Special and Affirmative Defenses: (1) that OGPI's claim is subject to administrative routinary investigation/ examination by the BIR; (2) that the Php25,843,462.41 amount representing excise taxes allegedly paid by OGPI for the period from February to March 2013 was not properly documented; (3) that in an action for refund, the burden of proof is on the taxpayer to establish its right for a refund, and failure to sustain the burden is fatal to the claim; and (4) that OGPI must show that it has complied with the provisions of Section 229 of the 1997 NIRC on the prescriptive period for claiming tax refund or the issuance of a TCC. 71 Records, CTA Case No. 8995, Vol. 3, Exhibit "P-46," eFPS Payment Details, p. 1166; Records, CTA Case No. 8995, Vol. 3, Exhibit "P-47," Excise Tax Return, p. 1167. 72 Records, CTA Case No. 8995, Vol. 4, Exhibit "P-53," JA ofMs. Mallari, A-10, p. 1416. 73 Id., Vol. 3, Exhibit "P-31," Administrative Claim, pp. 1057-1113, with attachments. 74 Id., Vol. 2, JSFI, par. 6, p. 759. 75 Id., par. 7, p. 759. 76 Id., Vol. 1, PFR, pp. 6-250, with annexes. 77 Records, CTA Case No. 9034, PFR, Prayer, pp. 10-229, with annexes. 78 Records, CTA Case No. 8995, Vol. 1, Motion for Extension to File Answer, pp. 253-257; Records, CTA Case No. 8995, Vol. 1, Resolution, p. 259. 79 Records, CTA Case No. 8995, Vol. 1, Answer, pp. 260-267. r

DECISION CT A CASE NOS. 8995 & 9034 Page 9of33 The CIR continues to argue (5) that RMC No. 17-2013 is valid and constitutional; (6) that said RMC was meant as a guideline for its revenue officials, and does not add anything other than what Republic Act ('RA") No. 794280 ("Mining Act") and the 1997 NIRC already prescribe; and (7) that since RMC No. 17-2013 is an interpretative ruling intended for the benefit and instruction of the CIR's employees, he was not amiss in not publishing it and in not furnishing OGPI with a copy thereof. The CIR adds (8) that even granting that OGPI enjoyed tax-exempt status during the recovery period, the exemption was not extended indefinitely and has already lapsed; (9) that although OGPI was allowed to recover up to the full extent of its pre-operating expenses, it may only do so within a five (5)-year recovery period, which the CIR maintains may either be the actual commencement of commercial operations, as argued by OGPI, or the date indicated or declared by OGPI in the feasibility study it submitted to and approved by the DENR, following Section 4(g)81 of DENR Administrative Order ("AO") No. 1995-2382 and Section 5(i)83 of DENR AO No. 1996-4084, which both define "commercial operation;" (10) that since the feasibility study was submitted nearly eight (8) years ago, or on March 18, 2005, and was approved on October 11, 2005, then it is also likely that the reckoning date for the determination of the recovery period is much earlier than what OGPI claims to be; and (11) that in which case, the five (5)-year period within which OGPI may recover its pre-operating expenses has already lapsed. Finally, the CIR ended by stating that (12) claims for refund are strictly construed against the claimant and cannot be allowed unless granted in the most explicit and categorical language. 80 An Act Instituting A New System Of Mineral Resources Exploration, Development, Utilization, And Conservation, March 3,1995. 81 SECTION 4. Definition ofTerms. - As used in and for purposes of these rules and regulations, the following terms shall mean: X~ ~X X~ g. "Commercial Production" refers to the production of sufficient quantity of minerals to sustain economic viability of mining operations reckoned from the date of commercial operation as declared by the Contractor or as stated in the feasibility study, whichever comes first. 82 Implementing Rules and Regulations of Republic Act No. 7942, Otherwise Known as the "Philippine Mining Act of 1995," August 15, 1995. 83 SECTION 5. Definition of Terms. - As used in and for purposes of these rules and regulations, the following terms shall mean: XXX XXX XXX i. "Commercial Production" refers to the production of sufficient quantity of minerals to sustain economic viability of mining operations reckoned from the date of commercial operation as declared by the Contractor or as stated in the feasibility study, whichever comes first. 84 Subject: Revised Implementing Rules and Regulations of Republic Act No. 7942, Otherwise Known as the "Philippine Mining Act of 1995," December 19, 1996. (

DECISION CTA CASE NOS. 8995 & 9034 Page 10of33 The CIR filed his Respondent's Pre-Trial Brief in CTA Case No. 8995 on May 5, 2015.85 On July 14, 2015, OGPI filed before the Second Division a Motion for Consolidations6, praying for CTA Case No. 9034 to be consolidated with CTA Case No. 8995, the latter having been filed earlier and bearing the lower docket number. The same was granted by the Second Division in a Resolutions7 dated August 4, 2015. On even date, OGPI filed before the Third Division a Motion for Consolidation with Motion for Postponement of Pre-Trial and Deferment of Filing of Pre-Trial Brief and Judicial Affidavits88, praying for CTA Case No. 9034 pending before the Second Division to be consolidated with CTA Case No. 8995, and that the filing of OGPI's Pre-Trial Brief and judicial affidavits ("JA") be deferred until the said Motion is resolved. The Court granted the same in a Resolution89 dated September 4, 2015. Accordingly, CTA Case No. 9034 was consolidated with CTA Case No. 8995, the latter bearing the lower docket number. Meanwhile, in CTA Case No. 9034, after being granted two (2) extensions,9o the CIR filed a Motion for Leave to File and Admit Attached Answer91 on July 22, 2015, praying that the attached Answer (Re: Petition for Review dated 28 April 2015)92 be admitted; which the Second Division granted and accordingly admitted the attached Answer.93 In his Answer, the CIR interposed the following Special and Affirmative Defenses: (1) that BIR Ruling No. 10-2007 is not applicable to OGPI's case because the ruling was issued to APMI; (2) that BIR Ruling No. 10-2007 was expressly repealed by RMC No. 17-2013; (3) that RMC No. 17-2013 is a valid circular, seeking to implement a valid legislation, specifically Section 81 of the Mining Act; (4) that RMC No. 85 Records, CTA Case No. 8995, Vol. 1, Respondent's Pre-Trial Brief, pp. 270-273. 86 Records, CTA Case No. 9034, Motion for Consolidation, pp. 257-260. 87 Id., Resolution, pp. 287-288. 88 Records, CTA Case No. 8995, Vol. 1, Motion for Consolidation with Motion for Postponement of Pre- Trial and Deferment of Filing of Pre- Trial Brief and Judicial Affidavits, pp. 281-285. 89 Id., Resolution, pp. 292-295. 9� Records, CTA Case No. 9034, Motion for Extension of Time to File Answer, pp. 232-236; Records, CTA Case No. 9034, Order, p. 237; Records, CTA Case No. 9034, Motion for Additional Time to File Answer, pp. 251-255; Records, CTA Case No. 9034, Order, p. 256. 91 Records, CTA Case No. 9034, Motion for Leave to File and Admit Attached Answer, pp. 263-270. 92 Id., Answer (Re: Petition for Review dated 28 April 2015), pp. 271-279. 93 Id., Resolution, pp. 280-282. I

DECISION CTA CASE NOS. 8995 & 9034 17-2013 is a mere interpretative ruling, as it adds nothing new aside from what was already stated in the Mining Act, thus, negating any need for notice and hearing for its implementation; and (5) that it is incumbent upon OGPI to prove its entitlement to the refund sought because a claim for refund is not ipso facto granted upon filing of the claim, which OGPI failed to do. The CIR and OGPI filed their Consolidated Pre-Trial Briefs on September 22, 201594 and October 15, 201595, respectively for CTA Case Nos. 8995 and 9034. On October 30, 2015, the parties filed their Joint Stipulation of Facts and Issues96 ("JSFI"); and, a Pre-Trial Order97 was issued on November 27, 2015. Trial ensued. On March 3, 2016, OGPI filed a Motion to Commission Independent CPA to Conduct Special Audit (Pursuant to Section 5, Rule 12, Revised Rules of the Court of Tax Appeals)9B, which was granted by the Court in a Resolution99 dated April 12, 2016. Thereafter, the Independent Certified Public Accountant ("ICPA") submitted his ICPA Reportloo on May 19, 2016_101 On June 29, 2016, OGPI filed a Motion to Admit Attached Amended Independent Certified Public Accountant Report1D2 ("Amended ICPA Report"), which was granted by the Court in a Resolution1D3 dated August 4, 2016, thereby admitting the Amended ICPA Report1D4� Thereafter, on October 3, 2016, OGPI filed its Formal Offer of Evidencelos ("FOE"), offering Exhibits "P-1," "P-2," "P-3," "P-4-1," "P- 5," "P-6," "P-7," "P-8," "P-9," "P-9-1," "P-10," "P-11," "P-12," "P-13," 94 Records, CTA Case No. 8995, Vol. 1, Respondent's Consolidated Pre-Trial Brief pp. 301-305. 95 Id., Vol. 2, Consolidated Pre- Trial Brieffor Petitioner, pp. 731-749. 96 Id., JSFI, pp. 758-770. 97 Id., Pre-Trial Order ("PTO"), pp. 782-789. 98 Id., Motion to Commission Independent CPA, pp. 801-807. 99 Id., Resolution, pp. 834-835. 100 !CPA Report, Exhibit "P-70," Folders 1-70. 1�1 Records, CTA Case No. 8995, Vol. 2, Transmittal Letter, pp. 839-841. 1�2 Id., Motion to Admit Attached Amended Independent Certified Public Accountant Report, pp. 842- 847. 103 Records, CTA Case No. 8995, Vol. 2, Resolution, pp. 868-871. 104Amended !CPA Report, Exhibit "P-70," Folders 1-6. 105 Records, CTA Case No. 8995, Vols. 3 & 4, OGPI's Formal Offer of Evidence ("FOE"), pp. 877-1594, with annexes. (

DECISION CTA CASE NOS. 8995 & 9034 Page 12of33 "P-14," "P-15," "P-16," "P-17," "P-18," "P-19," "P-20," "P-21," "P-22," "P-23," "P-24," "P-25," "P-26," "P-27," "P-29," "P-30," "P-31," "P-32," "P-33," "P-34," "P-35," "P-36," "P-37," "P-38," "P-39," "P-40," "P-41," "P-42," "P-43," "P-44," "P-45," "P-46," "P-47," "P-48," "P-49," "P-50," "P-51," "P-51-a," "P-53," "P-53-a," "P-54," "P-54-a," "P-70," "P-70-a," "P-71" to "P-573," including sub-exhibits, "P-574" to "P-917," including sub-exhibits, "P-918" to "P-927," "P-930" to "P-941," "P- 946" to "P-1309," "P-1312" to "P-1650," including sub-exhibits, "P- 1651" to "P-2568," "P-2577" to "P-2932," "P-2934" to "P-3262," "P- 3265" to "P-3318," including sub-exhibits, "P-3319" to "P-5108," "P- 5125" to "P-5266," "P-5268" to "P-6021," including sub-exhibits, "P- 6022" to "P-6303," "P-6366" to "P-6581," "P-6674" to "P-7324," including sub-exhibits, "P-7325" to "P-7499," "P-7506" to "P-7765," including sub-exhibits, "P-7766" to "P-13714," "P-13716" to "P- 13717," "P-13719" to "P-13726," "P-13728" to "P-13924," "P-13963" to "P-15301," "P-15308" to "P-17572," "P-19888" to "P-20685," "P- 20687" to "P-20688," "P-20690" to "P-22768," "P-20770" to "P-23694," "P-23696" to "P-26173," including sub-exhibits, "P-26176" to "P- 26787," "P-26816" to "P-28354," "P-28359" to "P-31480," "P-31496" to "P-31498," "P-31502" to "P-33015," "P-33017" to "P-33018," "P- 33020" to "P-33684," "P-33686" to "P-35083," "P-35100" to "P-35247," "P-35250" to "P-35251," "P-35254" to "P-35857," "P-35859" to "P- 36318," "P-36320" to "P-36910," "P-36912" to "P-37101," "P-37104" to "P-37201," "P-37203" to "P-40672," "P-40677" to "P-40678," "P- 40683" to "P-40686," "P-40691" to "P-40692," "P-40697" to "P-41361," "P-41363" to "P-41864," "P-41869" to "P-41883," "P-41888" to "P- 43384," "P-43386" to "P-43546," "P-43551" to "P-43817," "P-43819" to "P-43901," "P-43904" to "P-45700," "P-45703" to "P-45712," "P- 45723" to "P-46045," "P-46047" to "P-45327," "P-45330" to "P-46455," "P-46459" to "P-47400," "P-47407" to "P-47409," "P-47413" to "P- 47415," "P-47428" to "P-48364," including sub-exhibits, "P-48365" to "P-50276," "P-50278" to "P-50303," "P-50306" to "P-50345," "P- 50347" to "P-50358," "P-50360" to "P-50361," "P-50363" to "P-50439," "P-50441" to "P-50442," "P-50444" to "P-50445," "P-50447" to "P- 50448," "P-50450" to "P-50451," "P-50454" to "P-50455," "P-50457" to "P-50464," "P-50466" to "P-50471," "P-50473" to "P-50474," "P- 50476" to "P-50483," "P-50485" to "P-50488," "P-50490" to "P-50491," "P-50493" to "P-50494," "P-50496" to "P-50499," "P-50501" to "P- 50506," "P-50508" to "P-50509," "P-50511" to "P-50516," "P-50519" to "P-50544," "P-50546" to "P-50547," "P-50550" to "P-50558," "P- 50560" to "P-50566," "P-50568" to "P-50613," "P-50615" to "P-50616," "P-50618" to "P-50619," "P-50621" to "P-50631," "P-50633" to "P- 51786," "P-51791" to "P-52235," "P-52238" to "P-52774," "P-52776" to "P-52781," "P-52783" to "P-52890," "P-52892" to "P-52893," "P- (

DECISION CTA CASE NOS. 8995 & 9034 Page 13 of33 52895" to "P-53540," including sub-exhibits, "P-53865," including sub-exhibits, "P-53866," "P-53867," including sub-exhibits, and "P- 53868," as evidence. The FOE was resolved by the Court in a Resolution106 dated November 24, 2016, denying Exhibits "P-900," "P-2737," "P-5154," "P- 6793," "P-11011," "P-11012," "P-11013," "P-11014," "P-15853," "P- 17302," "P-17303," "P-17304," "P-17509," "P-20524," "P-21052," "P- 22360," "P-22769," "P-22900," "P-23249," "P-23250," "P-23251," "P- 23665," "P-23666," "P-23667," "P-26149," "P-26553," "P-27308" to "P- 27311," "P-27381," "P-27442" to "P-27438," "P-33017," "P-38030," "P- 38554," "P-38841," "P-38975," "P-40170," "P-40171," "P-40624" to "P- 40642," "P-43515," "P-43516," "P-45328," "P-45329," "P-45701," "P- 45702," "P-46046," "P-48107," "P-48108," "P-48109," "P-48308," "P- 52791," and "P-53067" for not being found in the records of the case. On December 13,2016, OGPI filed a Motion for Reconsideration [of the Resolution dated November 24, 2016)1�7, to which the Court resolved in a Resolution108 dated February 21, 2017, eventually admitting Exhibits "P-900," "P-2737," "P-6793," "P-11011," "P-11012," "P-11013," "P-11014," "P-17302," "P-17303," "P-17304," "P-17509," "P-20524," "P-21052," "P-23665," "P-23666," "P-23667," "P-26553," "P-27381," "P-38030," "P-38554," "P-38841," "P-38975," "P-40170," "P-40171," "P-40624" to "P-40642," "P-43515," "P-43516," "P-48308," and "P-53067." There being no report of investigation, as manifested by the CIR's counsel, the parties were ordered to file their respective memoranda, doing away with the CIR's presentation of evidenceJ09 OGPI filed its Memorandum for Petitioner110 on April 19, 2017; and after being granted extension,111 the CIR submitted his Memorandum112 on May 4, 2017. 106 Records, CTA Case No. 8995, Vol. 4, Resolution, pp. 1621-1624. 107 Id., Motion for Reconsideration [of the Resolution dated November 24, 2016], pp. 1626-1633. 1os Id., Resolution, pp. 1645-1647. 109 Records, CTA Case No. 8995, Vol. 4, Minute Resolution Dated March 20, 2017, p. 1648. no Id., OGPI's Memorandum, pp. 1650-1689. 111 Records, CTA Case No. 8995, Vol. 4, Motion for Extension of Time to File Memorandum, pp. 1690- 1693; Records, CTA Case No. 8995, Vol. 4, Resolution, pp. 1694-1695. 112 Records, CTA Case No. 8995, Vol. 4, the CIR's Memorandum, pp. 1696-1711. (

DECISION CTA CASE NOS. 8995 & 9034 Page 14 of33 On May 9, 2017, the Court promulgated a Resolution113 submitting the case for decision; hence, this Decision. The Issues114 WHETHER OGPI COMPLIED WITH THE REQUIREMENTS UNDER SECTION 229 OF THE 1997 NIRC FOR THE RECOVERY OF INTERNAL REVENUE TAXES ERRONEOUSLY, WRONGFULLY, ILLEGALLY, OR EXCESSIVELY ASSESSED OR COLLECTED; WHETHER OGPI SHOULD BE CONSIDERED EXEMPT FROM THE PAYMENT OF EXCISE TAXES DURING THE SO-CALLED "RECOVERY PERIOD;" WHETHER OGPI PAID EXCISE TAXES ON FEBRUARY 25, 2013, FEBRUARY 26, 2013, MARCH 26, 2013, APRIL 29,2013, MAY 30,2013, AND JUNE 25,2013 COVERING REMOVALS OF MINERAL ORES, COPPER CONCENTRATES, AND DORE BARS ERRONEOUSLY PAID, OR ILLEGALLY OR WRONGFULLY COLLECTED; WHETHER OGPI IS ENTITLED TO THE REFUND OR THE ISSUANCE OF A TCC IN THE AMOUNTS OF PHP25,843,462.41 AND PHP42,785,549.13 REPRESENTING ALLEGED ERRONEOUSLY PAID EXCISE TAXES FOR THE PERIOD FROM FEBRUARY TO MARCH 2013 AND FROM APRIL TO JUNE 2013, RESPECTIVELY; WHETHER THE CIR OBSERVED THE PROPER PROCEDURAL REQUIREMENTS BEFORE ISSUING THE ASSAILED RMC N0.17-2013; WHETHER THE CIR MAY APPLY RETROACTIVELY THE REVOCATION OF BIR RULING NO. 10-2007; AND 113 Records, CTA Case No. 8995, Vol. 4, Resolution, pp. 1712-1713. 114 Id., Vol. 2, PTO, Issues, p. 785. (

DECISION CTA CASE NOS. 8995 & 9034 Page 15 of33 WHETHER OR NOT THE REVOCATION OF BIR RULING NO. 10-2007 THROUGH THE ASSAILED RMC NO. 17-2013 VIOLATED THE NON-IMPAIRMENT CLAUSE OF THE 1987 CONSTITUTION. OGPI's Arguments11s OGPI avers that both administrative and judicial claims for refund or issuance of a TCC of excise tax erroneously paid on the removals of copper concentrates were filed within the two (2)-year period prescribed under Sections 204(C) and 229 of the 1997 NIRC. It claims that it is exempt from the payment of excise tax from the date of approval of its Mining Project Feasibility Study up to the end of the recovery period pursuant to the FTTA, Section 81 of the Mining Act, Section 236116 of DENR AO No. 1995-23, and as reiterated in Section 214 of DENR AO No. 2010-21 117. OGPI insists that while the Mining Act did not provide for a time limit for the recovery period, DENR AO No. 1995-23 filled it in by stating in Section 236 thereof that "[t]he period of recovery which is reckoned from the date of commercial operation shall be for a period not exceeding five years or until the date of actual recovery, whichever comes earlier." OGPI adds that DENR AO No. 1995-23, after stating exactly what the Mining Act provides with respect to what the "government share" consists of and when the collection of such share shall commence, emphatically repeats that "[f]or clarification, the Government's 115 Records, CTA Case No. 8995, Vol. 4, OGPI's Memorandum, Discussion, pp. 1662-1686. 116 SECTION 236. Government Share in FTAA. - The Government share in a financial or technical assistance agreement shall consist of, among other things, the Contractor's corporate income tax, excise tax, special allowance, withholding tax due from the Contractor's foreign stockholders arising from dividend or interest payments to the said foreign stockholder in case of a foreign owned corporation and all such other taxes, duties and fees as provided for under existing laws. The Government share in an FTAA shall be negotiated by the government and the Contractor taking into consideration (a) capital investment of the project (b) risks involved (c) contribution of the project to the economy (d) technical complexity of the project and (e) other factors that will provide for a fair and equitable sharing between the parties. The collection of Government share shall commence after the FTAA Contractor has fully recovered its pre-operating, exploration and development expenses, inclusive. The period of recovery which is reckoned from the date of commercial operation shall be for a period not exceeding five years or until the date of actual recovery, whichever comes earlier. For clarification, the Government's entitlement to its share shall commence after the FTAA Contractor has fully recovered its pre-operating, exploration and development stage expenses, inclusive and the Contractor's obligations under Chapter XXVII of the rules and regulations do not arise until this time. 117 Providing for the Consolidated Department of Environment and Natural Resources Administrative Order for the Implementing Rules and Regulations of Republic Act No. 7942, Otherwise Known as The Philippine Mining Act of 1995, June 28,2010. (

DECISION CTA CASE NOS. 8995 & 9034 Page 16of33 entitlement to its share shall commence after the FTAA Contractor has fully recovered its pre-operating, exploration and development stage expenses, inclusive, and the Contractor's obligations under Chapter XXVII of the rules and regulations do not arise until this ti�me. II OGPI further asserts that DENR AO No. 1999-56118 specifically provides that the "government share," which includes excise tax on minerals, shall not be collected from the date of approval of the Mining Project Feasibility Study up to the end of the recovery period. The exemption, OGPI adds, was in fact recognized by the BIR when it issued BIR Ruling No. 10-2007. Thus, in as much as it is exempt from excise tax during the recovery period, OGPI asserts that the excise taxes it paid on February 25, 2013, February 26, 2013, March 26, 2013, April 29, 2013, May 30, 2013, and June 25, 2013 covering removals of copper concentrates were erroneously paid or illegally collected. Accordingly, OGPI submits that it is entitled to a refund or the issuance of a TCC in the aggregate amounts of Php25,843,462.41 and Php42,785,549 .13. OGPI avers that RMC No. 17-2013 is null and void because the CIR, in issuing the said RMC, violated its right to due process when no formal notice to it nor to the professional organizations mentioned in Section 2.1 119 of RMC No. 20-1986120 was served. OGPI adds that no public hearing was held. Thus, OGPI claims that RMC No. 17-2013 did not have the legal effect of validly revoking or reversing BIR Ruling No. 10-2007 issued to it on May 4, 2007. Moreover, OGPI avers that the BIR did not furnish the MGB with a copy of the RMC, a clear violation of RMC No. 28-2012121 which requires the BIR to furnish the MGB with copies of latest BIR regulations, rulings, and other tax issuances affecting the mining and 118 Guidelines Establishing the Fiscal Regime of Financial or Technical Assistance Agreements, December 27,1999. 119 2.1 The Records Division of the National Office shall furnish, thru registered mail, all of the following business and professional organizations with the corresponding revenue tax issuance: a. Philippine Institute of Certified Public Accountants; b. Integrated Bar of the Philippines; c. Philippine Chamber of Commerce and Industry; d. American Chamber of Commerce; e. Federation of Filipino-Chinese Chamber of Commerce and Industry; and f. The Japanese Chamber of Commerce & Industry of the Philippines, Inc. 120 Notice, Publication and Effectivity of Internal Revenue Tax Rules and Regulations, July 24, 1986. 121 Publishing the Full Text of the Implementing Guidelines of the Memorandum of Agreement Between the BIR and MGB, June 19,2012. r

DECISION CTA CASE NOS. 8995 & 9034 Page 17of33 mineral industry. Thus, according to OGPI, RMC No. 17-2013 was issued not only in violation of the notice and hearing requirements, but also in clear violation of the Memorandum of Agreement between the BIR and the MGB. Assuming that BJR Ruling No. 10-2007 was validly revoked, OGPI avers that the retroactive application of RMC No. 17-2013 violates Section 246122 of the 1997 NIRC. OGPI claims that it is in the height of injustice for the CIR to change the rules when the former relied in good faith on the BJR Ruling that it is exempt from excise tax on minerals during the recovery period. Finally, OGPI asserts that its tax exemption under the FTAA is a contractual tax exemption granted by the government in exchange for a valid and material consideration, thus, protected by the Non- Impairment Clause of Section 10123, Article III of the 1987 Constitution. The CIR's Counter-Arguments124 The CIR counters that the Court has no jurisdiction to rule on the validity or constitutionality of RMC No. 17-2013, which is the proper subject of an appeal before the Secretary of Finance, and eventually to the Office of the President under Section 4125 of the 1997 NIRC. In any case, the CIR insists that RMC No. 17-2013 is valid and constitutional. According to the CIR, RMC No. 17-2013 was meant as 122 SEC. 246. Non- RetroactivihJ of Rulings. - Any revocation, modification or reversal of any of the rules and regulations promulgated in accordance with the preceding Sections or any of the rulings or circulars promulgated by the Commissioner shall not be given retroactive application if the revocation, modification or reversal will be prejudicial to the taxpayers, except in the following cases: (a) Where the taxpayer deliberately misstates or omits material facts from his return or any document required of him by the Bureau of Internal Revenue; (b) Where the facts subsequently gathered by the Bureau of Internal Revenue are materially different from the facts on which the ruling is based; or (c) Where the taxpayer acted in bad faith. 123 SECTION 10. No law impairing the obligation of contracts shall be passed. 124 Records, CTA Case No. 8995, Vol. 4, the CIR's Memorandum, Arguments/Discussion, pp. 1697-1709. 125 SEC. 4. Power of the Commissioner to Interpret Tax Laws and to Decide Tax Cases. - The power to interpret the provisions of this Code and other tax laws shall be under the exclusive and original jurisdiction of the Commissioner, subject to review by the Secretary of Finance. The power to decide disputed assessments, refunds of internal revenue taxes, fees or other charges, penalties imposed in relation thereto, or other matters arising under this Code or other laws or portions thereof administered by the Bureau of Internal Revenue is vested in the Commissioner, subject to the exclusive appellate jurisdiction of the Court of Tax Appeals. r

DECISION CTA CASE NOS. 8995 & 9034 a guideline for his corps of revenue officials, and does not add anything other than what the Mining Act and the 1997 NIRC already prescribe. The CIR also points out that the nature of interpretative ruling is such that they do not need to be published. Accordingly, the CIR submits that he was not amiss in not publishing RMC No. 17- 2013 and in not furnishing OGPI with a copy thereof. The CIR submits that OGPI is not the proper party-in-interest in the instant case. According to the CIR, a careful reading of Clauses 6.4 and 7 of the Offtake Agreement will reveal that it is the buyer-owner which has control over the copper concentrates at the time of seizure who has legal standing to sue, and not OGPI. The CIR maintains that there is no error or illegality that can be ascribed to its apprehension of the copper concentrates extracted by OGPI because such is a summary remedy validly provided in Sections 171 and 172 of the 1997 NIRC. The apprehensions, according to the CIR, were all conducted under the authority of, and aptly documented by their, duly issued Mission Orders and Apprehension Slips. The CIR continues that the apprehension documents, along with the actual exercise thereof, enjoy a presumption of regularity. Even granting that OGPI enjoyed a tax-exempt status during its recovery period, the CIR claims that it is nevertheless no longer exempt from excise tax because the recovery period has already lapsed. Contrary to OGPI's claim that the recovery period should be reckoned from its actual commencement of commercial operations, the CIR submits that it may either be the actual commencement of commercial operations, as argued by OGPI, or the date indicated or declared by OGPI in the feasibility study submitted to and approved by the DENR. Since the feasibility study was submitted nearly eight (8) years ago, or on March 18,2005, and was approved on October 11, 2005, the CIR avers that it is likely that the reckoning date for the determination of the recovery period is much earlier than what OGPI claims to be. Hence, the CIR submits that the recovery period of five (5) years within which OGPI may recover its pre-operating expenses has already expired. Lastly, the CIR emphasizes that claims for refund are construed strictly against the claimant since they partake of the nature of tax exemption, and as such, they are looked upon with disfavor. (

DECISION CTA CASE NOS. 8995 & 9034 Page 19of33 The Ruling of the Court The Court has jurisdiction over the present case. Section 204(C) in relation to Section 229 of the 1997 NIRC requires that the filing of both administrative and judicial claims for refund be filed within two (2) years from the date of payment of the tax. The relevant provisions read: SEC. 204. Authority of the Commissioner to Compromise, Abate and Refund or Credit Taxes. - The Commissioner may - XXX XXX XXX (C) Credit or refund taxes erroneously or illegally received or penalties imposed without authority, refund the value of internal revenue stamps when they are returned in good condition by the purchaser, and, in his discretion, redeem or change unused stamps that have been rendered unfit for use and refund their value upon proof of destruction. No credit or refund of taxes or penalties shall be allowed unless the taxpayer files in writing with the Commissioner a claim for credit or refund within two (2) years after the payment of the tax or penalty; Provided, however, That a return filed showing an overpayment shall be considered as a written claim for credit or refund. XXX XXX XXX SEC. 229. Recovery of Tax Erroneously or Illegally Collected. No suit or proceeding shall be maintained in any court for the recovery of any national internal revenue tax hereafter alleged to have been erroneously or illegally assessed or collected, or of any penalty claimed to have been collected without authority, or of any sum alleged to have been excessively or in any manner wrongfully collected, until a claim for refund or credit has been duly filed with the Commissioner; but such suit or proceeding may be maintained, whether or not such tax, penalty, or sum has been paid under protest or duress. In any case, no such suit or proceeding shall be filed after the expiration of two (2) years from the date of payment of the tax or penalty regardless of any supervening cause that may arise after payment; Provided, however, That the J

DECISION CTA CASE NOS. 8995 & 9034 Page 20of33 Commissioner may, even without written claim therefor, refund or credit any tax, where on the fact of the return upon which payment has been made, such payment appears clearly to have been erroneously paid.I26 Corollary thereto, Section 3(a), Rule 8 of the RRCTA provides for the following: SEC. 3. Who may appeal; period to file petition. - (a) A party adversely affected by a decision, ruling or the inaction of the Commissioner of Internal Revenue on disputed assessments or claims for refund of internal revenue taxes, or by a decision or ruling of the Commissioner of Customs, the Secretary of Finance, the Secretary of Trade and Industry, the Secretary of Agriculture, or a Regional Trial Court in the exercise of its original jurisdiction may appeal to the Court by petition for review filed within thirty days after receipt of a copy of such decision or ruling, or expiration of the period fixed by law for the Commissioner of Internal Revenue to act on the disputed assessments. In case of inaction of the Commissioner of Internal revenue on claims for refund of internal revenue taxes erroneously or illegally collected, the taxpayer must file a petition for review within the two-year period prescribed by law from payment or collection of the taxes.I27 Based on the foregoing, a taxpayer has two (2) years from the date of payment of the tax (alleged to have been erroneously or illegally collected) within which to file a claim for refund or for the issuance of a TCC before the CIR and with the Court; and that a prior filing of an administrative claim is a condition precedent before a judicial claim can be filed. Records reveal that OGPI paid excise taxes on the removal of copper concentrates on the following dates: DATE OF PAYMENT AMOUNT OF TOTAL PER EXCISE TAX PAID QUARTER February 25, 2013128 Php 13,942,179.39 February 26, 2013129 417,743.20 126 Underscoring ours. 127 Underscoring ours. 128 Records, CTA Case No. 8995, Vol. 3, Exhibit "P-34," eFPS Payment Details, p. 1122; Records, CTA Case No. 8995, Vol. 3, Exhibit "P-35," Payment Form, p. 1123; Records, CTA Case No. 8995, Vol. 3, Exhibit "P-36," Excise Tax Return, pp. 1124-1125. (

DECISION 11,483,539.82 Phi'_ 25,843,462.41 CTA CASE NOS. 8995 & 9034 20,420,131.15 42,785,549.13 Page 21 of33 20,783,962.43 March 26,2013130 1,581,455.55 April29, 2013131 May 30,2013132 June 25, 2013133 OGPI filed its administrative claim134 before the Excise LT Audit Division I on February 20, 2015, seeking for the refund of excise taxes paid for the period from February to March 2013 and from April to June 2013, in the amounts of Php25,843,462.41 and Php42,785,549.13, respectively. Subsequently, on February 24, 2015135, without waiting for the decision of the BIRon its administrative claim, OGPI filed a Petition for Review before the CTA seeking for the recovery of the Php25,843,462.41 amount. Another Petition for Review was filed on April28, 2015136, this time for the recovery of Php42,785,549.13 excise taxes paid for the period from April to June 2013. Considering the foregoing, the Court holds that OGPI timely filed its administrative and judicial claims for refund or for the issuance of a TCC of excise taxes alleged to be erroneously or illegally collected, the relevant dates of which are summarized as follows: DATE OF PAYMENT DATE OF FILING OF DATE OF FILING OF LAST DAY TO FILE OF EXCISE TAX ADMINISTRATIVE CLAIM PETITION FOR REVIEW BOTH CLAIMS February 25, 2015 February 25, 2013 February 20, 2015 February 24, 2015 February 26, 2015 February 26, 2013 February 20, 2015 February 24, 2015 March 26, 2015 February 20, 2015 February 24, 2015 April 29, 2015 March 26, 2013 February 20, 2015 May30, 2015 April29, 2013 February 20, 2015 April 28, 2015 June 25, 2015 Max30, 2013 February 20, 2015 April 28, 2015 June 25, 2013 April 28, 2015 Clearly, the administrative claim filed on February 20, 2015 and the judicial claim filed on February 24, 2015 and April 28, 2015 were 129 Records, CTA Case No. 8995, Vol. 3, Exhibit "P-38," Payment Form and BIR Tax Payment Deposit Slip, pp. 1137-1139. 130 Records, CTA Case No. 8995, Vol. 3, Exhibit "P-40," eFPS Payment Details, p. 1160; Records, CTA Case No. 8995, Vol. 3, Exhibit "P-41," Excise Tax Return, p. 1161. 131 Records, CTA Case No. 8995, Vol. 3, Exhibit "P-42," eFPS Payment Details, p. 1162; Records, CTA Case No. 8995, Vol. 3, Exhibit "P-43," Excise Tax Return, p. 1163. 132 Records, CTA Case No. 8995, Vol. 3, Exhibit "P-44," eFPS Payment Details, p. 1164; Records, CTA Case No. 8995, Vol. 3, Exhibit "P-45," Excise Tax Return, p. 1165. 133 Records, CTA Case No. 8995, Vol. 3, Exhibit "P-46," eFPS Payment Details, p. 1166; Records, CTA Case No. 8995, Vol. 3, Exhibit "P-47," Excise Tax Return, p. 1167. 134 Records, CTA Case No. 8995, Vol. 3, Exhibit "P-31," Administrative Claim, pp. 1057-1113, with attachments. 135 ld., Vol. 1, PFR, pp. 6-250, with annexes. 136 Records, CTA Case No. 9034, PFR, pp. 10-229, with annexes. I

DECISION CTA CASE NOS. 8995 & 9034 Page22 of33 filed within the two (2)-year prescriptive period. Accordingly, the Court has jurisdiction to try the present controversy. The CTA has jurisdiction to rule on the constitutionality or validity of RMC No. 17-2013, subject to exhaustion of administrative remedies. The CIR alleges that the Court has no jurisdiction to rule on the constitutionality or validity of RMC No. 17-2013, which removes OGPI's exemption from excise taxes during the recovery period, because the same is bestowed upon the Secretary of Finance, and eventually to the Office of the President under Section 4 of the 1997 NIRC. The Court partially agrees. The Supreme Court, in The Philippine American Life and General Insurance Company v. The Secretary of Finance and the Commissioner of Internal Revenue137, citing City of Manila v. Grecia-Cuerdo13B, has ruled that the CTA has jurisdiction, through its power of certiorari, to rule on the validity of a particular administrative rule or regulation in the exercise of its appellate jurisdiction. The pertinent provision of the decision reads: In the recent case of City of Manila v. Grecia-Cuerdo, the Court en bane has ruled that the CTA now has the power of certiorari in cases within its appellate jurisdiction. To elucidate: XXX XXX XXX On the strength of the above constitutional provisions, it can be fairly interpreted that the power of the CTA includes that of determining whether or not there has been grave abuse of discretion amounting to lack or excess of jurisdiction on the part of the RTC in issuing an interlocutory order in cases falling within the exclusive appellate jurisdiction of the tax court. It, thus, follows that the CTA, by constitutional mandate, is vested with jurisdiction to issue writs of certiorari in these cases. 137 G.R. No. 210987, November 24, 2014, 741 SCRA 578. 138 G.R. No. 175723, February 4, 2014, 715 SCRA 182. (

DECISION CTA CASE NOS. 8995 & 9034 Page 23 of33 Indeed, in order for any appellate court to effectively exercise its appellate jurisdiction, it must have the authority to issue, among others, a writ of certiorari. In transferring exclusive jurisdiction over appealed tax cases to the CTA, it can reasonably be assumed that the law intended to transfer also such power as is deemed necessary, if not indispensable, in aid of such appellate jurisdiction. There is no perceivable reason why the transfer should only be considered as partial, not total. Evidently, City of Manila can be considered as a departure from Ursal in that in spite of there being no express grant in law, the CTA is deemed granted with powers of certiorari by implication. Moreover, City of Manila diametrically opposes British American Tobacco to the effect that it is now within the power of the CTA, through its power of certiorari, to rule on the validity of a particular administrative rule or regulation so long as it is within its appellate jurisdiction. Hence, it can now rule not only on the propriety of an assessment or tax treatment of a certain transaction, but also on the validity of the revenue regulation or revenue memorandum circular on which the said assessment is based.I39 In the instant case, the alleged erroneous collection of excise taxes arose from RMC No. 17-2013 which revokes BIR Ruling No. 10- 2007 granting exemption to OGPI from excise tax during the recovery period. While the Court may have jurisdiction to rule on the validity or constitutionality of RMC No. 17-2003, the Court cannot take cognizance over the same for failure of OGPI to exhaust administrative remedies before appealing to the Court. Section 4 of the 1997 NIRC provides for the power of the CIR to interpret tax laws, to wit: Sec. 4. Power of the Commissioner to Interpret Tax Laws and to Decide Tax Cases. - The power to interpret the provisions of this Code and other tax laws shall be under the exclusive and original jurisdiction of the Commissioner, subject to review by the Secretary of Finance. XXX XXX XXX 139 Underscoring ours. I

DECISION CTA CASE NOS. 8995 & 9034 Page 24 of33 While the CIR has the power to make interpretative rules pursuant to the above Section 4, the same is subject to review by the Secretary of Finance. There is nothing in the records which would indicate that OGPI filed an appeal with the Secretary of Finance questioning the CIR's issuance of RMC No. 17-2013. Accordingly, OGPI failed to exhaust all available remedies before it questioned the same before the Court. The doctrine of exhaustion of administrative remedies finds its basis under the precept that where a remedy before an administrative body is provided by statute, relief must be sought by exhausting this remedy prior to bringing an action in court in order to give the administrative body every opportunity to decide a matter that comes within its jurisdictionJ40 In Universal Robina Corp. (Corn Division) v. Laguna Lake Development Authority141, the Supreme Court explained: The doctrine of exhaustion of administrative remedies is a cornerstone of our judicial system. The thrust of the rule is that courts must allow administrative agencies to carry out their functions and discharge their responsibilities within the specialized areas of their respective competence. The rationale for this doctrine is obvious. It entails lesser expenses and provides for the speedier resolution of the controversies. Comity and convenience also impel courts of justice to shy away from a dispute until the system of administrative redress has been completed. Accordingly, the Court cannot pass upon the validity or constitutionality of RMC No. 17-2013. The collection of "government share," which includes excise tax, 140 Smart Communications, Inc. v. Aldecoa, G.R. No. 166330, September 11, 2013, 705 SCRA 392; Special People, Inc. Foundation v. Canada, G.R. No. 160932, January 14, 2013, 688 SCRA 403; Addition Hills Mandaluyong Civic & Social Organization, Inc. v. Megaworld Properties & Holdings, Inc., G.R. No. 175039, April 8, 2012, 670 SCRA 83; Laguna CATV Network, Inc. v. Han. Maraan, G.R. No. 139492, November 19,2002,392 SCRA 221. 141 G.R. No. 191427, May 30, 2011, 649 SCRA 506. I

DECISION CTA CASE NOS. 8995 & 9034 Page25 of33 shall commence after the FTAA contractor has fully recovered its pre-operating expenses. In order to determine whether the excise taxes paid by OGPI on February 25, 2013, February 26, 2013, March 26, 2013, April 29, 2013, May 30, 2013, and June 25, 2013 in connection with the FTAA, are exempt from excise taxes, a careful evaluation of the Mining Act, and the issuances issued by the DENR in relation thereto finds relevance. Section 81 of the Mining Act provides for the collection of "government share" in FTAA, as follows: SECTION 81. Government Share in Other Mineral Agreements. - The share of the Government in co-production and joint-venture agreements shall be negotiated by the Government and the contractor taking into consideration the: (a) capital investment of the project, (b) risks involved, (c) contribution of the project to the economy, and (d) other factors that will provide for a fair and equitable sharing between the Government and the contractor. The Government shall also be entitled to compensations for its other contributions which shall be agreed upon by the parties, and shall consist, among other things, the contractor's income tax, excise tax, special allowance, withholding tax due from the contractor's foreign stockholders arising from dividend or interest payments to the said foreign stockholders, in case of a foreign national, and all such other taxes, duties and fees as provided for under existing laws. The Government share in financial or technical assistance agreement shall consist of, among other things, the contractor's corporate income tax, excise tax, special allowance, withholding tax due from the contractor's foreign stockholders arising from dividend or interest payments to the said foreign stockholder in case of a foreign national and all such other taxes, duties and fees as provided for under existing laws. The collection of Government share in financial or technical assistance agreement shall commence after the financial or technical assistance agreement contractor has fully (

DECISION CTA CASE NOS. 8995 & 9034 Page26of33 recovered its pre-operating expenses/ exploration/ and development expenditures/ inclusive.142 To implement the above provision, the DENR issued DENR AO No. 1996-40, repealing thereby DENR AO No. 1995-23, the pertinent provision provides hereunder: Section 214. Government Share in FTAA. The Government share in an FTAA shall consist ot among other things/ the Contractor/s corporate income tax/ excise tax/ Special Allowance, withholding tax due from the Contractor's foreign stockholder in case of a foreign-owned corporation and all such other taxes, duties and fees as provided for in existing laws. The Government share in an FTAA shall be negotiated by the Government and the Contractor taking into consideration: XXX XXX XXX The collection of Government share shall commence after the FTAA Contractor has fully recovered its pre- operating/ exploration and development expenses/ inclusive. The period of recovery which is reckoned from the date of commercial operation shall be for a period not exceeding five (5) years or until the date of actual recovery, whichever comes earlier.143 From the foregoing, it is clear that: (1) "government share" includes excise tax; (2) the collection of "government share" shall not commence until the contractor has fully recovered its pre-operating, exploration and development expenses; and (3) the period of recovery shall be from the date of commercial operation, which shall not exceed five (5) years, or until date of actual recovery, whichever comes earlier. On December 27,1999, the DENR issued DENR AO No. 1999-56 providing guidelines establishing the fiscal regime for FTAAs, the pertinent provision reads: 142 Underscoring ours. 143 Underscoring ours. r

DECISION CTA CASE NOS. 8995 & 9034 Page 27of33 Section 3. Fiscal Regime of a Financial or Technical Assistance Agreement. The Financial or Technical Assistance Agreement which the Government and the FTAA Contractor shall enter into shall have a Fiscal Regime embodying the following provisions: a. General Principles. The Government Share derived from Mining Operations after the Date of Commencement of Commercial Production shall be determined in accordance with this Section. XXX XXX XXX g. Government Share. 1. Basic Government Share. The following taxes, fees and other such charges shall constitute the Basis Government Share: a. Excise tax on minerals; XXX XXX XXX From the Effective Date, the foregoing taxes, fees and other such charges constituting the Basic Government Share, if applicable, shall be paid by the Contractor: Provided, That the above items (a) to (g) shall not be collected from the Contractor upon the date of approval of the Mining Project Feasibility Study up to the end of the Recovery Period. Any taxes, fees, royalties, allowances or other imposts, which should not be collected by the Government, but nevertheless paid by the Contractor and are not refunded by the Government before the end of the next taxable year, shall be included in the Government Share in the next taxable year. Any Value-Added Tax refunded or credited shall not form part of Government Share.144 Evidently, upon the date of approval of the Mining Project Feasibility Study up to the end of the recovery period, the FTAA contractor shall not be liable for excise taxes. 144 Underscoring ours. (

DECISION CTA CASE NOS. 8995 & 9034 Page 28 of33 OGPI failed to present evidence to prove that the imposition of excise tax was made during the recovery period. OGPI insists that it was still under the recovery period when the excise taxes were paid. Since it commenced its commercial operation only in April 1, 2013145, OGPI asserts that it has until 2018 to recover its pre-operating expenses.146 The Court is not persuaded. As to the payment of"government share," DENR AO No. 1999- 56 provides as follows: d. Payment of Government Taxes and Fees. The Contractor shall promptly pay all the taxes and fees required by the Government in carrying out the activities covered in the FTAA and in such amount, venue, procedure and time as stipulated by the particular law and implementing rules and regulations governing such taxes and fees subject to all rights of objection or review as provided for in relevant laws, rules and regulations. In case of non-collection as covered by Clause 3-g-1 of this Section, the Contractor shall follow the prevailing procedures for availment of such non-collection in accordance with pertinent laws, rules and regulations. Where prevailing orders, rules and regulations do not fully recognize and implement the provisions covered by Clause 3-g-1 of this Section, the Government shall exert its best efforts to ensure that all such orders, rules and regulations are revised or modified accordingly. e. Recovery of Pre-Operating Expenses. Considering the high risk, high cost and long term nature of Mining Operations, the Contractor is given the opportunity to recover its Pre- Operating Expenses incurred during the pre-operating period, after which the Government shall receive its rightful share of the national patrimony. The Recovery Period, which refers to the period allowed to the Contractor �to recover its Pre- Operating Expenses as provided in the Mining Act and the IRR, shall be a maximum period of five (5) years or at a date when the aggregate of the Net Cash Flows from the Mining Operations is equal to the aggregate of its Pre-operating Expenses, reckoned from the Date of Commencement of 145 Records, CTA Case No. 8995, Vol. 3, Exhibit "P-51," JA of Atty. Adaci-Cattiling, A-52 & A-53, p. 1182; Transcript of Stenographic Notes ("TSN") dated February 9, 2016, pp. 14-15, 17. 146 TSN dated February 9, 2016, p. 18. (

DECISION CTA CASE NOS. 8995 & 9034 Page 29 of33 Commercial Production{ whichever comes first. The basis for determining the Recovery Period shall be the actual Net Cash Flows from Mining Operations and actual Pre-Operating Expenses converted into its US dollar equivalent at the time the expenditure was incurred. "Net Cash Flow{( means the Gross Output less Deductible Expenses{ Pre-Operating Expenses{ Ongoing Capital Expenditures and Working Capital charges. f. Recoverable Pre-Operating Expenses. Pre-Operating Expenses for recovery which shall be approved by the Secretary [of the DENR] upon recommendation of the Director [of the MGB] shall consist of actual expenses and capital expenditures related to the following: XXX XXX XXX The foregoing recoverable Pre-Operating Expenses shall be subject to verification of its actual expenditure by an independent audit recognized by the Government and chargeable against the Contractor,147 From the foregoing, OGPI has a maximum period of five (5) years or at a date when the aggregate of the "Net Cash Flows from the Mining Operations{' is equal to the aggregate of its pre-operating expenses, reckoned from the date of commencement of commercial production, whichever comes first, of exemption from excise tax. In order to determine the date when the aggregate of the "Net Cash Flows from the Mining Operations" is equal to the aggregate of OGPI's pre-operating expenses, and ultimately, to ascertain whether it is proper to impose excise taxes on the removals of mineral ores and copper concentrates, the amount of "Net Cash Flows{( and "Pre- Operating Expenses{( should first be determined. OGPI alleged that its pre-operating expenses amounted to US$429,153.922148 as of March 31, 2013. However, other than the testimony of ICPA Richard R. Lapres ("ICPA Lapres") that OGPI is yet to recover its pre-operating expenditures amounting to US$293.5 Million,149 OGPI failed to present pre-operating expenses duly 147 Underscoring ours. 148 Records, CTA Case No. 8995, Vol. 3, Exhibit "P-26," Statement ofPre-Operating Expenses, p. 1046. 149 TSN dated September 5, 2016, pp. 6-8. r

DECISION CTA CASE NOS. 8995 & 9034 Page 30 of33 approved by the Secretary of the DENR, as recommended by the Director of the MGB, and as mandated under DENR AO No. 1999-56. During cross-examination, ICPA Lapres testified as follows:lso ATTY. BABARAN: XXX XXX XXX Q Mr. Lapres, in your answer to Question No. 10, you said that [OGPI] incurred [Php]310,519.01 US dollars as a valid pre-operating expenses. Sir, what is your basis in saying that this amount is a valid pre-operating expenses? MR. LAPRES: A That's based on our examination of the documents presented by [OGPI], the original copies of which we have photocopied so there are sales invoices and official receipts, check vouchers and other supporting documents. ATTY. BABARAN: Q So your basis in saying that this is a valid pre-operating expenses is merely the documents presented to you? MR. LAPRES: A The documents presented and ... interrupted ATTY. BABARAN: Q Yes, and you did not conduct any study or any audit whether this is indeed a valid pre-operating expenses ... interrupted MR. LAPRES: A We have traced that in the general details of their general ledger. ATTY. BABARAN: Q Yes. Based on the documents they presented to you? MR. LAPRES: tso Id. at 4-5. (

DECISION CTA CASE NOS. 8995 & 9034 Page 31 of33 A Yes. Further, while the (1) Notice of Issuance of an Order issued by Mr. Jerimias L. Dolino, CESO III, Assistant Secretary and Concurrent Director of the MGB, and the (2) Order dated October 11,2005 issued by Mr. Michael T. Defensor, Secretary of DENRISI will show that PDMF for the Didipio Project has been approved, the approval of the pre-operating expenses was not stated. Accordingly, for failure of OGPI to prove that it has valid pre- operating expenses to recover, and that it has yet to recover the same, and thus, it is still under the period of recovery, the Court cannot grant the instant Petition for Review. It must be remembered that cases filed before the Court are litigated de novo, and the party-litigants must prove every minute aspect of their cases by presenting, formally offering, and submitting its evidence to the Court.152 The taxpayer must present convincing evidence to substantiate a claim for refund153. The Court reiterates its ruling that actions for tax refund, as in the instant case, are in the nature of a claim for exemption and the law is not only construed in strictissimi juris against the taxpayer, but also the pieces of evidence presented entitling a taxpayer to an exemption is strictissimi scrutinized and must be duly proven.154 Considering that OGPI failed to submit sufficient evidence to support its claim for refund or for the issuance of a TCC, the instant Petitions for Review must necessarily fail. WHEREFORE, premises considered, the Petitions for Review filed by OceanaGold (Philippines), Inc. in CTA Case Nos. 8995 and 9034, claiming for the refund of or for the issuance of a tax credit certificate in the amounts of Php25,843,462.11 and Php42,785,549.13, 151 Records, CTA Case No. 8995, Vol. 3, Exhibit "P-8," Order, pp. 999-1000. 152 Dizon v. Court of Tax Appeals, etal., G.R. No. 140944, April 30, 2008, 553 SCRA 111; Atlas Consolidated Mining and Development Corporation v. Commissioner of Internal Revenue, G.R. No. 159490, February 18, 2008, 546 SCRA 150. 153 Far East Bank and Trust Company v. Commissioner of Internal Revenue, G.R. No. 149589, September 15, 2006, 502 SCRA 87. 154 Atlas Consolidated Mining and Development Corporation v. Commissioner of Internal Revenue, G.R. No. 159490, February 18, 2008, 546 SCRA 150. I

DECISION CTA CASE NOS. 8995 & 9034 Page 32of33 representing alleged erroneously paid and illegally and wrongfully collected excise taxes for the period from February to March 2013, and April to June 2013, respectively, are hereby DENIED for lack of merit. SO ORDERED. LOVELL~. BAUTISTA Associate Justice WE CONCUR: (/bJ,. ~ ;/ ._ MA. BELEN M. RINGPIS-LIBAN Associate Justice ATTESTATION I attest that the conclusions in the above Decision were reached in consultation before the case was assigned to the writer of the opinion of the Court's Division. LOVELL ~BAUTISTA Associate Justice Chairperson

DECISION CTA CASE NOS. 8995 & 9034 Page 33 of33 CERTIFICATION Pursuant to Article VIII, Section 13 of the Constitution and the Division Chairperson's Attestation, it is hereby certified that the conclusions in the above Decision were reached in consultation before the case was assigned to the writer of the opinion of the Court. Presiding Justice